KEEPING DEFENDER

WORKLOADS MANAGEABLE

I NDIGENT D EFENSE S ERIES

U.S. Department of Justice

Office of Justice Programs

Bureau of Justice Assistance

Monograph

#4

KEEPING DEFENDER

WORKLOADS MANAGEABLE
U.S. Department of Justice

Office of Justice Programs

810 Seventh Street NW.

Washington, DC 20531

John Ashcroft

Attorney General

Office of Justice Programs

World Wide Web Home Page

www.ojp.usdoj.gov

Bureau of Justice Assistance

World Wide Web Home Page

www.ojp.usdoj.gov/BJA

For grant and funding information contact

U.S. Department of Justice Response Center

1–800–421–6770

This document was prepared by The Spangenberg Group for the Bureau of Justice Assistance,

Office of Justice Programs,U.S.Department of Justice. The opinions,findings,and conclusions

or recommendations expressed in this document are those of the authors and do not necessarily represent the official position or policies of the U.S.Department of Justice.

The Bureau of Justice Assistance is a component of the Office of Justice Programs, which also

includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice

and Delinquency Prevention, and the Office for Victims of Crime.
KEEPING DEFENDER

WORKLOADS MANAGEABLE

January 2001

NCJ 185632

Prepared by The Spangenberg Group 
BUREAU OF JUSTICE ASSISTANCE iii

Foreword

Adequately supporting indigent defenders is critical to preserving the constitutional rights of individuals accused of crimes. To function properly, the

criminal justice system needs all of its components, including defense, operating effectively.

One important way we can bolster indigent defense in this country is educating criminal justice practitioners, elected officials, and the public about

the challenges facing the indigent defense community. This series will help

accomplish that goal by addressing key issues that attorneys and managers

in indigent defense systems struggle with in their day-to-day work. 

The subject of this report, finding ways to better manage defender workloads, is at the heart of ensuring that the administration of justice is fair and

equitable. Every day, defender offices and assigned counsel are forced to

manage too many clients with inadequate resources. Too often, the quality

of service suffers, jeopardizing one of our most important constitutional

rights: the right to effective counsel.

It is our hope that the information and recommendations provided here

serve as a valuable resource for all of us working to improve the justice system.

Bureau of Justice Assistance
BUREAU OF JUSTICE ASSISTANCE v

Contents

I. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 

II. Caseload v. Workload . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Importance of Uniform Definition of Case . . . . . . . . . . . . . . . . . . 4

Ethical Considerations: When To Say Enough? . . . . . . . . . . . . . . 4 

III. Caseload Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

National Standards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Case-Weighting Studies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

State Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Statutory Caseload Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . 13

Contractual Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Caseload Standards for Private Attorneys . . . . . . . . . . . . . . . . . 14

Performance Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

IV. Withdrawal From Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Systemic Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Malpractice Claims in State Court and Federal Immunity . . . . . . 22

V. Strategies for Keeping Workloads Manageable . . . . . . . . . . . . . . . . 25

VI. Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

VII. For More Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
BUREAU OF JUSTICE ASSISTANCE 1

In 1991, Rick Tessier, a young

public defender working in New

Orleans, was appointed to represent

Leonard Peart. At the time, Tessier

was handling 70 active felonies.

Peart was charged with armed robbery, aggravated rape, aggravated

burglary, attempted armed robbery,

and first-degree murder. Tessier’s

clients typically were incarcerated

between 30 and 70 days before he

met with them. In the first 7 months

of 1991, Tessier represented 418

defendants. His office had minimal

investigative support and no funds

for expert witnesses. 

Tessier filed a motion to have the

trial court declare, before disposition

of Peart’s case, that Tessier was unable to provide Peart with effective

assistance of counsel, given his pending workload and lack of investigative and expert resources. Tessier’s

motion resulted in a sharply worded

admonition by the Louisiana Supreme

Court that the state legislature must

take action to remedy indigent defense in Louisiana. The situation was

so bad that the court threatened to

“employ the more intrusive and 

specific measures it has thus far

avoided to ensure that indigent defendants received reasonably effective

assistance of counsel.”1

While refusing to make a blanket

pretrial finding that Tessier provided

ineffective assistance to his clients,

the court instructed the trial court to

which Tessier was assigned to hold

individual hearings for all defendants

making such a pretrial assertion. Furthermore, the trial court was ordered

to apply a rebuttable presumption

that such defendants were not receiving assistance of counsel effective

enough to meet constitutionally required standards. 

Tessier’s experience conjures

stereotypical images of young, overworked lawyers juggling too many

files, too many courtrooms, and too

many clients at the expense of the

indigent defendants they represent.

Although in many instances this

public image is a far cry from the

truth, excessive workload is one of

the most pressing issues facing indigent defense programs in the United

States. 

I. Introduction

About the Authors

This report was researched and written by the staff of The Spangenberg

Group, a nationally recognized criminal justice research and consulting firm

working to improve the delivery of indigent defense services. Located in West

Newton, Massachusetts, The Spangenberg Group has provided research and

technical assistance for justice organizations in every state in the nation.
Historically, public defenders have

had little control over the number of

cases they receive. Most public defender offices began by representing

a small percentage of criminal defendants. Today, in some jurisdictions,

public defender offices are appointed

as many as 80 percent of all criminal

cases. As populations and caseloads

have increased, many public defender

offices have been unable to obtain

corollary increases in staff. Every day,

defenders try to manage too many

clients. Too often, the quality of service suffers. At some point, even the

most well-intentioned advocates are

overwhelmed, jeopardizing their clients’

constitutional right to effective counsel.

The problem is not limited to public defenders. Individual attorneys

who contract to accept an unlimited

2

KEEPING DEFENDER WORKLOADS MANAGEABLE

number of cases in a given period

often become overwhelmed as well.

Excessive workloads even affect

court-appointed attorneys. Rules of

professional responsibility make it

clear that every lawyer must maintain a reasonable workload. In practice, meeting this standard has been

more difficult for lawyers who represent indigent criminal defendants

than for those who represent paying

clients. 

In the past decade, defender organizations, state legislatures, state

courts, and other entities have developed approaches to managing the

workloads of attorneys who represent indigent defendants. This monograph discusses these approaches

and presents strategies for keeping

caseloads manageable. 
BUREAU OF JUSTICE ASSISTANCE 3

II. Caseload v. Workload

Many practitioners still tend to

think of their caseload only in terms

of the number of clients they are

assigned to represent. Yet, this captures only a portion of their full

workload. With the advent of sentencing guidelines and the expanded

use of mandatory minimum sentences, the complexity of criminal

defense practice has increased dramatically. There are fewer and fewer

“easy” cases, and with the growth of

public defender programs many

attorneys find themselves spending

more and more time on administrative matters. Thus, the amount of

time an attorney must spend to

competently represent a client is not

accurately reflected by the number

of clients alone. 

Likewise, given the different

amounts of time required for different kinds of cases, measuring caseload in terms of the number of

clients is not an accurate means of

comparing the amount of work done

by attorneys handling different types

of cases.

In addition to zealous advocacy 

in court, effective defense work

requires client contact, investigation,

legal research, social work, conferences with prosecutors, and case

preparation. In the chapter “Coping

With Excessive Workload” of the

American Bar Association’s (ABA)

Ethical Problems Facing the Criminal

Defense Lawyer: Practical Answers

to Tough Questions, authors Edward

C. Monahan and James Clark set

out the dimensions of competence

and quality for criminal defense

lawyers as defined by the ABA in

several substantive areas:

• Legal knowledge and skill.

• Timeliness of representation.

• Thoroughness and preparation.

• Client relationship and 

interviewing.

• Communicating with the accused.

• Advising the accused. 

• Investigation.

• Trial court representation.

• Sentencing. 

• Appellate representation maintaining competence and ensuring

quality.

Each of these facets of effective

representation is compromised when

caseloads are too high. Defenders’

job responsibilities extend beyond

representing clients. They consult

with colleagues about their own and

others’ cases. They keep abreast of

recently decided cases and new laws

and rules by attending training sessions and through routine professional

development reading. All defenders

must perform administrative tasks,
KEEPING DEFENDER WORKLOADS MANAGEABLE

4

and many have supervisory responsibilities, often of both support staff and

lawyers. In addition, public defender

managers have commitments to participate in community and policy

meetings. All of these responsibilities

detract from the time a lawyer can

spend on individual case work but 

are essential to the functioning of an 

effective defender office. In short, a

defenders overall workload comprises

a defenders active caseload combined with these duties.

Many defenders who face excessive caseloads make decisions analogous to those made by physicians

in a M.A.S.H. unit. They perform

triage. Defendants facing serious

felony charges receive primary

attention, whereas defendants facing

misdemeanor, juvenile delinquency,

or lower-level felony charges receive

much less. Too often in these cases,

early investigation and regular client

communication fall by the wayside.2

Importance of Uniform

Definition of a Case 

In developing workload or caseload

standards for a given jurisdiction, it is

critical to use a common definition of

what constitutes a case. The National

Center for State Courts and the Conference of State Court Administrators, in State Court Model Statistical

Dictionary, 1989, instruct court

administrators to “[c]ount each

defendant and all charges involved in

a single incident as a single case.”3 In

developing its standards, the National

Advisory Commission (NAC) defined

a case as “a single charge or set of

charges concerning a defendant (or

other client) in one court in one proceeding.” Whereas it is important for

the indigent defense system (including public defenders, court-appointed

attorneys, and contract defenders) in

a given jurisdiction to count cases

using a uniform definition, it is optimal when the courts and prosecution

in the jurisdiction also use the same

definition. This affords the greatest

opportunity to develop and approve

budget requests for the adjudication

component of the criminal justice

system accordingly on a systematic

and balanced basis.

Ethical Considerations:

When To Say Enough? 

The first rule in ABA’s Model Rules

of Professional Conduct (as amended through August 1998) requires a

lawyer to provide competent representation to a client.4 Model Rule 1.3

requires that a lawyer “act with reasonable diligence and promptness.”

Model Rule 1.4 covers attorneyclient communication, mandating

that a lawyer keep a client reasonably informed about the situation

and promptly reply to reasonable

requests for information. Model Rule

1.7(b) prohibits attorneys from representing clients “if the representation of that client may be materially

limited by the lawyer’s responsibilities to another client.” Many public

defenders fail to acknowledge the

conflict of interest that arises when

excessive caseloads force them to

choose which of their clients will

receive the defense to which they

are entitled.

4
CASELOAD V. WORKLOAD

BUREAU OF JUSTICE ASSISTANCE 5

In State v. Smith, considered by

many defense practitioners to be the

most important opinion on public

defender workload, the Arizona

Supreme Court found that Mohave

County’s contract system violated

indigent defendants’ rights to due

process and counsel as guaranteed

by the Arizona and United States

Constitutions.5

The court, placing blame for the

system with the participating attorneys and the county, reasoned that

the attorneys are usually in a better

position to recognize when a contract will likely result in inadequate

representation than is the county

board of supervisors. The court quoted the Arizona Rules of Professional

Responsibility, which forbids attorneys

from accepting employment that cannot be adequately performed, and

cited ABA standards on delay and

punctuality (Standard 4–1.2) and

workload (Standard 5–4.3). 

ABA Standards for Criminal Justice, Providing Defense Services (3d

ed., 1992) and The Defense Function

(3d ed., 1993), establish quality representation as the benchmark for

criminal defense lawyers. Standard

4–1.2, “The Function of Defense

Counsel,” states that the basic duty

of defense counsel is to “render

effective, quality representation.”

Standard 5–1.1 reinforces this principle: “The objective in providing

counsel should be to assure that

quality representation is afforded.”

The fact that overburdened attorneys are reluctant to stand up and

say enough is enough makes the

problem even more difficult to

address. Reasons for this reluctance

include ego, fear of rocking the boat

in the local criminal system, and fear

of reprobation from the appropriate

disciplinary committee of the governing bar if an attorney suggests

that he or she is unable to provide

effective representation. 

This fear is particularly acute for

attorneys such as public defenders

and court-appointed attorneys who

serve at the will of a particular judge.

ABA cautions against the potential

conflict caused by such an arrangement in Standard 5–1.3(a) of the

Standards for Criminal Justice, which

states:

The selection of lawyers for specific cases should not be made

by the judiciary or elected officials, but should be arranged for

by the administrators of the

defender, assigned counsel, and

contract-for-service programs.

Moreover, it is the primary responsibility of the judiciary to ensure that

court proceedings are fair and equitable. If a judge with responsibility

for appointing counsel in his or her

courtroom recognizes that overwhelming caseloads may jeopardize

a defendant’s right to competent 

representation of counsel, it is the

judge’s responsibility to identify and

rectify the situation.

In their guide to coping with excessive caseloads, Monahan and Clark

explain how attorneys should—in
KEEPING DEFENDER WORKLOADS MANAGEABLE

6

fact, must—deal with these 

situations:

A lawyer who has so much

work, so many cases, so many

other clients that she is materially limited in her ability to effectively represent another client

has an impermissible personal

conflict of interest and cannot

assume responsibility for an

additional client.

Rules clearly establish that a

lawyer cannot ethically accept

another case or other work

when she has so much work

that accepting another case will

preclude her from competently

representing the new client or

performing any other ethical

requirements, for example, communicating fully and promptly

with the client, or investigating

the case and adequately advising the client.6
Ethical guidelines set the ultimate

standard for determining when an

attorney carries an excessive caseload. However, numerical standards

also play an important role in putting

concerns about excessive caseload 

in context. Some standards establish

a limited number of cases that a

defender should not exceed in any

given year. Others are aspirational,

encouraging indigent defense lawyers

to accept reasonable caseloads in

accordance with professional responsibility requirements.

Caseload standards take different

forms, including statute, court rule,

contractual terms, court opinion,

and published guidelines by national

organizations. The latter—national

standards promulgated by organizations including ABA, the National

Legal Aid and Defender Association

(NLADA), and NAC—typically form

one starting point for states and

localities that develop their own

standards. The second starting point

is a case-weighting study, in which

caseload/workload standards are

developed to reflect the actual cases

handled in a particular jurisdiction. 

Programs that have developed

successful caseload or workload programs share a common set of characteristics, including

• A sound management information

system based on reliable and

empirical data.

BUREAU OF JUSTICE ASSISTANCE 7

• A statistical reporting procedure

that has been accepted by the

funding sources.

• A sound managerial/administrative system.

• The ability to tie caseload standards to budget requests.

• A mechanism (e.g., a statute or

court rule) that kicks in once

caseloads reach an excessive

level to prevent defenders from

being assigned to additional

cases.

• The ability to mobilize strong

local support.

Note that a caseload standard is

just a beginning. Without adequate

support staff, training, and supervision, a standard will not do much to

alleviate case overload. Some jurisdictions, such as Florida and Indiana,

have used unit staffing formulas in

conjunction with attorney workload

standards. In such a system, ratios of

adequate support staff to attorneys

are developed. For example, for

every four felony attorneys there

should be one paralegal, one investigator, and one secretary. The bottom

line is that caseload or workload standards should be viewed as one part of

an overall program to ensure that

defender offices have adequate staff

and resources to properly represent

clients.

III. Caseload Standards 
KEEPING DEFENDER WORKLOADS MANAGEABLE

8

them. Washington state law requires

counties and municipalities to establish caseload standards and encourages counties and municipalities to

use the Washington Defender Association’s standards as guidelines.

In the absence of guidelines created for a particular jurisdiction, NAC

standards are an effective tool to

help public defenders plan and discuss resource needs with policymakers and budget committees. However, NAC standards are limited to

describing resource needs strictly

according to the raw number of

cases for which an attorney is

responsible. They do not take into

consideration administrative or

supervisory work, waiting or travel

time, or professional development

activities. Furthermore, they do not

differentiate the amount of time

required to work on various types of

cases within a case category. For

example, all felonies, whether

straightforward burglary charges

or complicated child sex abuse

charges, are given equal weight by

NAC standards. 

Case-Weighting Studies

Several public defender offices

have developed their own caseload

standards, using either the Delphi

method or the time record-based

case-weighting method. Of the two

methods, the latter is most reliable.

The Delphi and 

Case-Weighting Methods

Under the Delphi method, a sample of attorneys is given a series of

National Standards

The only national body that has

attempted to quantify a maximum

annual public defender caseload is

NAC, which published its standards

in 1973.7 The commission, made up

of elected officials, law enforcement

officers, corrections officials, community leaders, prosecutors, judges,

and defense attorneys, was appointed by the administrator of the federal

Law Enforcement Assistance Administration. In NAC’s report, Standard

13.12 on courts states:

The caseload of a public defender attorney should not exceed

the following: felonies per attorney per year: not more than

150; misdemeanors (excluding

traffic) per attorney per year:

not more than 400; juvenile

court cases per attorney per

year: not more than 200; Mental

Health Act cases per attorney

per year: not more than 200;

and appeals per attorney per

year: not more than 25.8

NAC caseload standards have

served as a benchmark for other

entities. Commentary to Standard 

5–5.3 of ABA’s Standards Relating

to the Administration of Criminal

Justice references the public defender caseload standards developed by

NAC, noting they “have proven

resilient over time and provide a

rough measure of caseloads.”9

Additionally, some state organizations, such as the Washington Defender Association, have adopted

NAC standards or standards similar to
Case Type Urban Office Rural Office

Felony 1 6 6

Felony 2–3 80 80

Felony 4–6 241 191

Juvenile 310 305

Misdemeanor 310 598

Traffic 259 285

scenarios designed to reflect typical

cases and clients to be found in any

public defender’s workload. The

attorneys are asked to estimate the

time involved in handling the various

scenarios. This results in case

weights based on “strong educated

guesses” about the relative time

required to complete various tasks.

The case-weighting method uses

detailed time records kept by public

defender attorneys over a period,

typically ranging from 7 to 13

weeks. The time records provide

a means by which caseload (the 

number of cases a lawyer handles)

can be translated to workload (the

amount of effort, measured in units

of time, for the lawyer to complete

work on the caseload). In the broadest context, weights can be given to

the total annual caseload of an office

to compare with the next year’s

anticipated volume of cases. Assuming that records are kept of attorney

time expended in each case, the

translation of projected caseload into

projected workload can be accomplished with some precision.

CASELOAD STANDARDS

BUREAU OF JUSTICE ASSISTANCE 9

Table 1: Colorado Case-Weighting Standards

Colorado Case-Weighting Study

In 1996, The Spangenberg Group

completed a case-weighting study

for the Colorado state public defender.10 Since then, the Colorado public

defender has used the study’s

weighted caseload formula to determine staffing needs in regional trial

offices. It justifies its budget requests

with the formula, which sets out different annual caseload standards for

trial attorneys working in urban and

rural offices.11 The standards are

shown in table 1.

The Colorado legislature has accepted the formula for purposes of

both budgeting and analyzing the fiscal impact of proposed legislation.

As a result, the Colorado public

defender office reports that its attorney staffing levels have been adequately funded in recent years. It

believes that a critical element in the

acceptance of the study was obtaining legislative input in the initial

stages of the study’s design. This

involvement, together with the

empirical nature of the study, give
credibility to the case-weighting

study’s formula for staffing needs.

State Standards

Using a combination of NAC standards and case-weighting studies as

the starting point, several states

have implemented workload guidelines for public defenders. Table 2

shows the standards used in 15

states. In reviewing the table, note

that making comparisons between

various indigent defense systems is

an imperfect science, because of the

many variables affecting indigent

defense services in each state.12 Naturally, criminal practices and procedures vary from state to state and

often between jurisdictions within

a single state. Despite this caveat,

table 2 illustrates how different

states use workload standards.

These workload standards represent

the maximum annual number of

cases a single attorney should carry

if that attorney handles only that

type of case. For example, most

states with misdemeanor caseload

standards suggest that public

defenders handle no more than 400

misdemeanor cases in a single year,

if misdemeanors are the only type of

case the attorney handles. 

Additionally, many of these states

have further restrictions. To cite one

example, the Indiana Public Defender Commission’s workload standards

were designed for use by indigent

defense practitioners who have access to adequate support staff, in

recognition of the important role

support staff play in providing 

KEEPING DEFENDER WORKLOADS MANAGEABLE

10

quality indigent defense.13 The Indiana standards in table 2 represent

the caseload standards for offices

that maintain an adequate level of

support staff consistent with the

guidelines listed below. 

The ratio of support staff to 

attorneys should be as follows:

• Paralegal

- Felony, 1:4

- Misdemeanor, 1:5

- Juvenile, 1:4

- Mental Health, 1:2

• Investigator

- Felony, 1:4

- Misdemeanor, 1:6

- Juvenile, 1:6

• Law Clerk Appeal, 1:2

• Secretary

- Felony, 1:4

- Misdemeanor, 1:6

- Juvenile, 1:5 

For county public defender offices

that do not maintain the required

ratios of support staff to attorney,

annual caseloads are reduced

accordingly (to a maximum of

100–150 felonies, 300 misdemeanors, 200 juvenile cases, or 20

appeals per attorney per year). 

Also, Indiana’s experience shows

how successful statewide indigent

defense commissions can be in promulgating standards and guidelines

designed to improve and ensure uniformity of practice statewide. These

commissions (currently, 31 states

have a commission of some kind)
Table 2: Maximum Public Defender Workload Standards 

in Selected States

State Felony Misdemeanor Juvenile Appeals Authority

Arizona 150 300 200 25 State of Arizona v. Joe 

U. Smith, 681 P. 2d 

1374 (1984).

Colorado* 80– 310– 305– – The Spangenberg 

2411 5982 3103 Group. WeightedCaseload Study for the 

Colorado State Public 

Defender. November 

1996.

Florida* 200 400 250 50 Florida Public Defender Association. Comparison of Caseload 

Standards. July 1986. 

Georgia 150 400 200 25 Georgia Indigent Defense Council. Guidelines of the Georgia 

Indigent Defense 

Council for the Operation of Local Indigent 

Defense Programs.

October 1989.

Indiana 200 400 250 25 Indiana Public Defender Commission.

Standards for Indigent 

Defense Services in 

Non-Capital Cases: 

With Commentary. 

January 1995.

Louisiana 200 450 250 50 Louisiana Indigent

Defense Board. 

Louisiana Standards 

on Indigent Defense.

1995.

Massachusetts 200 400 300 – Committee for Public 

Counsel Services. Manual for Counsel Assigned Through the 

Committee for Public 

Counsel Services: Policies and Procedures.

June 1995.

Minnesota* 100– 250– 175 – Minnesota State Public 

1204 4005 Defender. Caseload 

Standards for District 

Public Defenders in 

Minnesota. October 

1991.

Missouri 40– 450 280 28 Missouri State Public 

1806 Defender System. 

Caseload Committee 

Report. September 

1992.

Nebraska 507 – – 40 Nebraska Commission 

on Public Advocacy. 

Standards for Indigent 

Defense Services in 

Capital and Non-Capital Cases. May 1996.

CASELOAD STANDARDS

BUREAU OF JUSTICE ASSISTANCE 11
KEEPING DEFENDER WORKLOADS MANAGEABLE

12

Table 2: Maximum Public Defender Workload Standards 

in Selected States (continued)

State Felony Misdemeanor Juvenile Appeals Authority

New York* 150 400 – 25 Indigent Defense Orga-

(City) nization Oversight 

Committee. General 

Requirements for All 

Organized Providers of 

Defense Services to 

Indigent Defendants.

July 1996.

Oregon 240 400 480 – Oregon State Bar. 

Indigent Defense Task 

Force Report.

September 1996.

Tennessee 55– 500 273 – The Spangenberg 

3028 Group. Tennessee

Public Defender CaseWeighting Study.

May 1999.

Vermont 150 400 200 25 Office of the Defender 

General. Policy of the 

Defender General Concerning Excessive 

Workloads for Public 

Defenders. October 

1987.

Washington 150 300 250 25 Washington Defender 

Association. Standards

for Public Defender 

Services. October 

1989.

*Jurisdictions in which caseload standards have been developed through case-weighting studies.

1 Colorado's felony caseload standards establish thresholds based on the severity of the charge

and whether defenders are in urban or rural offices. For Felony 2 and 3 cases, the standard is 80

cases per year. For Felony 4, 5, and 6 cases, the standard in rural areas is 191 cases and in urban

areas is 241 cases.

2 Colorado’s misdemeanor caseload standards establish thresholds based on the severity of the

charge and whether defenders are in urban or rural offices. The standards for misdemeanors in

urban areas are 259 traffic and 310 nontraffic cases per year. The standards for misdemeanors in

rural jurisdictions are 285 traffic and 598 nontraffic cases per year.

3 Colorado’s juvenile delinquency caseload standards establish thresholds based on whether

defenders are in urban or rural offices. For juvenile delinquency cases in urban areas, the standard

is 310 cases per year. In rural jurisdictions, the standard is 305 cases.

4 Minnesota’s caseload standards establish a range of cases a public defender may handle according to local practices throughout the state. Additionally, Minnesota has established a caseload

standard (3 cases per year) specifically for homicide cases.

5 Minnesota’s misdemeanor caseload standards establish a threshold based on the severity of the

charge. For gross misdemeanors, a public defender should not handle more than 250 to 300

cases per year, depending on local practices. For all other misdemeanors, the standard is 400

cases per year.

6 Missouri’s caseload standards establish thresholds based on the severity of the felony charge.

For Felony A and B cases, the standard is 40 cases per year. For Felony C and D cases, the standard is 180 cases.

7 The Nebraska Commission on Public Advocacy has established a felony caseload standard for

only the most serious category of felonies. The standard represents the number of violent crime

cases (rape, manslaughter, 2-degree murder, sexual assault) that a single attorney could handle

during a year if those cases were the only type of cases handled during the year.

8 Tennessee’s felony caseload standards establish thresholds based on the severity of the charge.

The standard is 55 per year for Felony A cases; 148 for Felony B cases; and 302 for Felony C, D,

and E cases.
CASELOAD STANDARDS

BUREAU OF JUSTICE ASSISTANCE 13

provide oversight and troubleshoot

to avoid serious problems in the delivery of indigent defense services.14 In

Indiana, the commission’s noncapital

standards were adopted in 1995. By

2000, 42 of the state’s 92 counties

were in compliance with its noncapital standards.

Statutory Caseload 

Provisions

Several jurisdictions have public

defender workload limitations written

into statutory provisions. Most do

not set specific numeric limitations

but include language requiring public

defenders to accept caseloads that

allow them to provide effective representation, or representation that 

comports with codes of professional

responsibility. At least two states’

statutory provisions contain specific

annual caseload caps based on

case-weighting studies conducted

for the statewide public defender

organizations.

New Hampshire requires the

statewide public defender program

to adopt a plan for the allocation of

cases between public defender staff

attorneys and assigned counsel.15

The purpose of the plan is twofold.

First, it establishes caseload limits

for defender attorneys in accordance

with professional standards under

the code of professional responsibility. Second, it provides for appointment of assigned counsel when 

public defender attorneys reach

maximum caseload limits. Pursuant

to the statutory requirement, a caseload plan loosely modeled after NAC

standards is incorporated into the

contract between the public defender

and the state. Unlike NAC standards,

the New Hampshire plan gives some

consideration to factors such as travel time and average case processing

time. 

The New Hampshire public

defender does not rely on the caseload plan alone. In fact, greater

emphasis is placed on an informal,

weighted caseload plan developed

over the years that guides the public

defender program’s internal case

assignment process. Case weights,

or units, have been developed based

on summaries of time reported by

public defenders on how long they

devote to individual cases.

Washington state mandates each

county or city to adopt standards for

the delivery of public defense services, whether those services are

provided by contract, assigned

counsel, or a public defender office.16

Among other things, the standards

are to include caseload limits, and

the standards endorsed by the Washington Defender Association “may

serve as guidelines to contracting

authorities.” 

Wisconsin’s statute sets out specific annual caseload standards for

assistant state public defenders that

are used to help make budget 

decisions.17 The standards take into

account the results of a case-weighting

study conducted by The Spangenberg

Group for the Wisconsin state public

defender in 1990, and they are

occasionally adjusted by the state
KEEPING DEFENDER WORKLOADS MANAGEABLE

14

legislature, with the input of the

state public defender, to reflect

changes in practice. Wisconsin’s

statute also acts as a safety valve

when caseloads reach the standards

set out in the statute by allowing the

public defender to seek legislative

approval to assign overload cases to

the private bar.

Contractual Standards 

Like public defenders, contract

attorneys can run into excessive

workload situations, particularly

when they have entered into lowbid, flat-fee contracts to handle all

of the cases in a given jurisdiction

for a set price. In State v. Joe U.

Smith, the Arizona Supreme Court

struck down Mohave County’s 

contract defense system, which

solicited sealed bids from private

bar members for several years.18 In

the underlying case, the defendant

was represented by a lawyer who

contracted with Mohave County to

represent indigent defendants on a

part-time basis. (The lawyer also

had a civil practice). The court

found that the contract lawyer 

handled 149 felonies, 160 misdemeanors, 21 juvenile cases, and 33

other types of cases in 11 months. 

The Arizona Supreme Court 

opinion established a widely cited

standard for assessing the constitutionality of a low-bid contract system.

The decision cites the NLADA Guidelines for Negotiating and Awarding

Indigent Defense Contracts and ABA’s

Standards for Criminal Justice and

concludes that Mohave County’s 

system did not conform with the standards and guidelines for four reasons:

(1) it did not take into account the

time the attorney was expected to

spend in representing his or her share

of indigent defendants; (2) it did not

provide for support costs for the

attorney, such as investigators, paralegals, and law clerks; (3) it did not

take into account the complexity of

each case; and (4) it did not take 

into account the competency of the

attorney.

In Nebraska, a statutory provision

governs indigent defense contractors’ caseloads. Neb. Rev. Stat. §

23–3406 (1999) states that any

contract negotiated between an

attorney and a county for the provision of indigent defense services

may specify a maximum allowable

caseload for each full- or part-time

attorney working under the contract.

Although no specific numbers are

prescribed, caseloads “shall allow

each lawyer to give every client the

time and effort necessary to provide

effective representation.” In addition, the statute states that such

contracts must require contracting

attorneys to adhere to minimum

standards set forth by ABA and the

Nebraska Canons of Ethics for

Attorneys.

Caseload Standards for 

Private Attorneys

At least two states’ standards recognize that private attorneys who

accept court appointments are susceptible to excessive caseloads,

particularly when compensation in
CASELOAD STANDARDS

BUREAU OF JUSTICE ASSISTANCE 15

court-appointed cases is inadequate.

In Indiana, where many of the state’s

92 counties use some sort of courtappointment system, state standards

regarding appointment of private

counsel in capital cases address this

potential problem.

In the late 1980s, the Indiana

Commission on Public Defense drafted standards regarding representation in death penalty cases. The

standards were ultimately adopted

by the Indiana Supreme Court in

Indiana Criminal Rule 24 and went

into effect in January 1990. Under

Rule 24, for the first time in the history of indigent defense in Indiana,

state funds became available for

counties that complied with the

requirements of the rule in providing

representation to indigent defendants

charged with crimes where the state

asked that the death penalty be

imposed. Rule 24 includes qualification standards for both lead counsel

and co-counsel, maximum caseload

standards (outside of the capital

case) for counsel, requirements for

sufficient support staff, and compensation, as of January 1, 2001, of

$90 per hour.19 Any county that is

able to meet these standards is reimbursed by the state for one-half the

cost of representation.

Rule 24(B)(3) of the Indiana Rules

of Criminal Procedure specifically

addresses “Workload of Appointed

Counsel” in capital cases, stating:

(a) Attorneys accepting appointments pursuant to this rule shall

provide each client with quality

representation in accordance

with constitutional and professional standards. Appointed

counsel shall not accept workloads which, by reason of their

excessive size, interfere with the

rendering of quality representation or lead to the breach of professional obligations.

(b) A judge shall not make an

appointment of counsel in a

capital case without assessing

the impact of the appointment

on the attorney’s workload.

Additionally, Rule 24(J)(2) focuses

on the workload of appointed appellate counsel:

In the appointment of appellate

counsel, the judge shall assess

the nature and volume of the

workload of appointed appellate

counsel to assure that counsel

can direct sufficient attention to

the appeal of the capital case. In

the event the appointed appellate counsel is under contract to

perform other defense or appellate services for the court of

appointment, no new cases for

appeal shall be assigned to such

counsel until the appellant’s

brief in the death penalty case

is filed. 

Performance Standards

Performance standards are another

important tool for attorneys facing a

work-overload crisis. When a jurisdiction adopts performance standards for attorneys who represent
KEEPING DEFENDER WORKLOADS MANAGEABLE

16

indigent defendants, defense attorneys can use the standards to explain to the court—through informal

discussions with judges or, if necessary, litigation—that appointment 

to additional cases will make it 

impossible to properly represent

their current clients. Performance

standards describe minimum

requirements for competent representation by public defenders and

private court-appointed counsel.

Such standards, which are in place

in several states, are designed to

ensure that, among other things,

attorneys maintain contact with the

client, conduct a factual investigation, examine the complaint for legal

sufficiency, file appropriate motions,

and conduct discovery.20 NLADA’s

Performance Guidelines for Criminal

Defense Representation (1995) is an

excellent resource for defense counsel and a good starting point for a

jurisdiction seeking to tailor performance guidelines to local practice

and procedure.
IV. Withdrawal From Cases

What should an attorney do when

facing a caseload that she believes

will jeopardize her ability to provide

effective representation? A request

by an attorney to a court to withdraw from assigned cases and/or

temporarily refrain from taking new

cases typically comes as a last

resort, after the attorney has endured a mounting case-overload situation. Often, in the case of a public

defender office, the chief public

defender will have made unsuccessful attempts to secure supplemental

funds needed to hire additional attorneys who can absorb the overload.

The situation typically screams “Crisis!” in the indigent defense system.

A successful motion to temporarily

cut off appointments to an individual

attorney or to a public defender

office can trigger ripple effects

through the entire local criminal justice system.

In November 1991, the Knox

County public defender in Tennessee moved the four general session court judges to suspend further

case appointments to the public

defender office. Excessive caseloads, as high as five times the

national standards, formed the basis

for the motion. The public defender

argued that continued appointments

would create a conflict of interest

between present and future clients.

To temporarily relieve the situation,

the general session judges granted

an order that halted all further

appointments of cases to the public

defender for 60 days. A similar

motion filed in criminal court resulted in suspension of misdemeanor

appointments to the public defender

office so that the attorneys could

work down their caseloads to more

manageable levels.

In such a situation, cases normally assigned to the public defender

would typically be assigned to the

private criminal defense bar, who

would take additional case appointments until the public defender’s

caseload reached a manageable

level. At the time, other factors

were at play that affected indigent

defense statewide, not just in Knox

County. One primary factor was that

Tennessee’s Indigent Defense Fund

was running out of money, just 4

months into the fiscal year. The fund

is used to pay for the operation of

public defender offices, compensate

attorneys in court-appointed cases,

and pay for associated expert fees

in those cases.

To make up this shortfall, the

state proposed to reduce the rate of

reimbursement for court-appointed

cases to 25 percent of the total

claim. Rather than the $20 hourly

rate for out-of-court work and $30

hourly rate for in-court representation, attorneys’ fees would be

reduced to $5 and $7.50 an hour.

This proposal was unacceptable

to appointed attorneys, who had

BUREAU OF JUSTICE ASSISTANCE 17
KEEPING DEFENDER WORKLOADS MANAGEABLE

18

complained about the inadequacy of

the $20/$30 rates that had been in

place since 1965. The proposal was

not implemented.

For attorneys practicing in Knox

County, news about the reduced fees

came in the wake of a new plan,

announced by the General Sessions

Court, to distribute cases to private

counsel during the temporary suspension of case appointments to the

public defender. The court issued

notice to every bar member in the

county advising them that they

would be expected to accept an

appointment to a criminal case.

The mandate applied to all lawyers,

regardless of whether they were currently practicing or familiar with

criminal defense.

At about the time the temporary

freeze on new appointments to the

Knox County public defender office

was set to expire, the Indigent

Defense Fund was almost entirely

depleted. The Shelby County 

(Memphis) public defender office

announced that it would stop taking

new appointments and begin layoffs

because of the state’s inability to

provide funding to the office. When

the Shelby County public defender

sought an order for continued funding for his office in federal court, the

judge indicated that he did not have

the authority to order the state to

provide funding. However, he noted

that he did have the authority to prevent the state from contributing

directly to unconstitutional conditions in the local jail, which was

under a consent decree that included

a maximum population cap. If the

public defender stopped accepting

cases, it would trigger a backlog in

the criminal justice system, including

the jail.

The crisis in Tennessee was finally

remedied by moving funds from

other program areas to keep the

Shelby County public defender office

operating, and court-appointed

lawyers were paid the full $20/$30

rate.21 The 60-day halt in appointments to the Knox County public

defender office gave the office the

breathing room it needed to make

it through the fiscal year.

In the next legislative session, the

Tennessee legislature appropriated

funds to increase public defender

staff at offices throughout the state.

The Knox County public defender

office almost doubled in size. As

years passed, it became clear that

additional staff were needed. The

legislature requested that the state

comptroller oversee case-weighting

studies for judges, prosecutors, and

public defenders to determine the

level of staff needed. 

In 1999, The Spangenberg Group

conducted a weighted-caseload

study for public defenders in Tennessee that found an additional 59

attorneys were needed statewide.

Weighted-caseload studies were conducted for judges and prosecutors at

the same time by the National Center for State Courts and the American Prosecutors Research Institute.

It is expected that any state-funded

increases in the numbers of judges,
BUREAU OF JUSTICE ASSISTANCE

Withdrawal From Cases 

prosecutors, or public defenders will

be made according to the recommendations in these studies. However, because of fiscal restrictions,

Tennessee has not yet funded additional public defenders, prosecutors,

or judges. 

These funding limitations prompted Knox County Public Defender

Mark Stephens to work with county

officials to avoid a repeat of 1991.

State law now gives localities the

option to adopt an ordinance requiring that 75 cents be appropriated for

the local public defender’s office

for every dollar of county money

appropriated for the local district

attorney’s office. Knox County

adopted such an ordinance. Furthermore, state law allows revenue from

a local litigation tax assessed on

criminal defendants convicted in

general sessions court to fund indigent defense in Knox County. These

local measures currently fund

almost one-third (7 of 22) of the

attorneys in the Knox County public

defender office.

In the early 1990s, Dade County,

Florida, was in a crisis similar to

that faced by Knox County. In October 1992, the Dade County public

defender office, arguing that crushing caseloads had rendered its

lawyers unable to represent criminal

defendants competently, filed petitions with four juvenile court judges

to withdraw from 500 juvenile cases

and to request that further juvenile

case appointments be suspended.

Dade County Public Defender 

Bennett Brummer called the situation “a reflection of a failure of state 

government. I have a constitutional

and ethical responsibility to provide

effective legal representation. I’ve

been very reluctant to withdraw

from cases. But it gets to the point

where you can’t justify being a selfrespecting professional and pretend

you’re providing legal representation

under those circumstances.”22

At the time of the public defender’s request to withdraw, Florida,

like many states, was experiencing

revenue shortfalls. Brummer had

requested an increase in funding

from the state legislature to hire

additional lawyers but ended up with

a budget smaller than that appropriated for his office the previous year.

Meanwhile, caseloads were on the

rise. Individual defenders had an

average of 98 open juvenile cases,

and the office was assigned to

roughly 100 additional cases each

week. At that rate, attorneys were

on their way to handling 400 juvenile cases apiece in 1992, double

NAC standards. 

Although workloads were up for

attorneys handling all types of

cases, Brummer reportedly withdrew from juvenile cases because

they are cheaper than adult cases

for court-appointed counsel to handle and because the overload situation was especially severe in the

office’s juvenile division. Brummer

was granted leave to withdraw, but

that amounted to a temporary

reprieve. It would not prevent a

repeat occurrence. 

19
KEEPING DEFENDER WORKLOADS MANAGEABLE

20

In Florida, 20 elected public defenders provide representation to

indigent defendants at the trial level

throughout the state’s judicial circuits. Appellate cases are handled

on a regional basis by 5 of the 20

offices. All funds for these programs

are provided by the state, but the

counties are responsible for representing indigent defendants in proceedings in which the state public

defender withdraws because of a

conflict of interest and where an

excessive workload precludes adequate state public defender representation. The Dade County public

defender’s request to withdraw from

cases in 1992 was not an isolated

incident. Because of their professional standards, 6 of Florida’s 20 elected public defenders have found it

necessary to withdraw from cases or

to seek county funds to supplement

their inadequate state budgets.23

Because state funds have not filled

the needs for additional public defender staff, public defenders have

sought local assistance. After Brummer withdrew from cases in 1992, the

county provided an influx of special

assistant public defenders, which it

continues to do. In FY 2000, the

county funded 82 of the 183 attorneys in Dade County’s public defender office.24 These so-called special

assistant public defenders work as

staff in the public defender office and

handle cases that otherwise would be

assigned to appointed counsel because of excessive workload. The

average cost per case to the county

for cases handled by special assistant

public defenders is much lower than

the average cost per case for courtappointed attorneys.25

In 2004, the state will assume the

responsibility of funding conflict and

overload counsel. Five public defender offices currently receive

county funds to hire special assistant

public defenders to handle what

would be overload cases. For these

five offices, including the Dade

County public defender, the top legislative priority is to obtain adequate

state funds for the positions before

transfer of financial responsibility for

overload cases to the state. 

Public defenders in Georgia have

also been forced to take action in

regard to overwhelming caseloads.

In 1990, after 4 years as a public

defender in Fulton County (Atlanta),

Georgia, Lynne Borsuk became

uncomfortable with her expanding

caseload and its effect on her

clients.26 After consulting with the

Georgia Association of Criminal

Defense Lawyers, Borsuk appeared

in court and requested that the judge

not appoint her to any more cases.

She filed a motion stating her caseload was so overwhelming that it

violated her clients’ right to effective

counsel and the canon of ethics of

the State Bar of Georgia. Borsuk

explained her action to a reporter:

“I recognized I was no longer doing

my clients a service by keeping

quiet. It was a sham. We were pretending that we were providing adequate representation. We weren’t.”27
Withdrawal From Cases 

BUREAU OF JUSTICE ASSISTANCE 21

Borsuk’s stand led to the formation of the Atlanta Bar Association

Blue Ribbon Commission to study

the problem of case overload in the

Fulton County public defender

office. After reviewing the bar’s findings, the Fulton County Commission

appropriated additional funds to the

public defender office.28 Borsuk,

however, paid a price for her initiative. She was demoted from handling felony cases to juvenile court

and resigned shortly thereafter.

Borsuk’s experience raises an

important issue: Whose responsibility is it to have an attorney withdraw

from a case—the individual defender

or the chief public defender? If an

assistant defender is not getting

workload relief and works for a chief

public defender who does not want

to create friction in the local criminal justice system, there are few

appealing options. She can resign

and leave colleagues with an even

greater workload. She can go over

the boss’s head to the court and ask

to withdraw. Or she can attempt to

build a coalition of bar, defender,

and other criminal justice system

players to look at the issue, which

could take weeks or longer to

orchestrate. Because these alternatives may not be palatable or feasible for a young defender, the chief

defender should monitor the workload and take steps to ease it when

it becomes excessive. 

Of course, individual defenders

should not stand idly by when a

workload situation becomes untenable. Recall the example of Rick

Tessier, the young defender in New

Orleans who filed a motion for relief

when he felt he could no longer provide constitutionally required standards of representation for his

clients. The Louisiana Supreme

Court upheld the promise it made in

State v. Peart to take action if none

was forthcoming from the legislature. In 1994, after its landmark

decision in Peart and a statewide

study of Louisiana’s indigent defense system conducted by The

Spangenberg Group, the Louisiana

Supreme Court promulgated a rule

creating the Louisiana Indigent Defense Assistance Board (LIDAB)

(formerly called the Louisiana Indigent Defender Board). LIDAB was

given $7.5 million in state funds and

charged to supplement the budgets

of local indigent defender boards,

defray the costs of court-ordered

defense experts and tests throughout the local boards, and more adequately fund counsel representing

indigent defendants charged with

capital crimes. 

In December 1997, the governor

and legislature assumed responsibility for LIDAB to avoid conflicts of

interest arising from the judiciary’s

stewardship of the program. In the

1999 legislative session, LIDAB

acquired the additional responsibility of ensuring that counsel is

appointed in state postconviction

death penalty cases. 

Systemic Litigation

Sometimes defenders’ excessive

workloads become so intractable in a
KEEPING DEFENDER WORKLOADS MANAGEABLE

22

jurisdiction that seeking relief through

traditional channels—promulgating

performance standards, documenting case overload and presenting the

evidence to criminal justice system

officials, seeking supplemental appropriations, requesting to withdraw from

cases, and seeking to temporarily decline additional appointments—fails

to make progress. At this point, bringing a lawsuit charging systemic deficiencies may be the only alternative. 

In the 1990s, attorneys in Connecticut’s statewide, state-funded public

defender system were chronically

overworked, carrying caseloads far

in excess of NAC standards. In 1993

and 1994, Connecticut public defenders each handled an average of

1,045 cases in “geographic area”

courts, where misdemeanors and

lesser felonies are tried. The average

caseload for an attorney representing juveniles was 716 cases a year.29

The situation was corrected through

settlement of a class action lawsuit,

Rivera v. Rowland, alleging violations of the 6th and 14th Amendments to the Constitution, violations

of the Connecticut constitution and

various state statutes, and failure to

provide the state public defender

system with adequate funding.30 The

lawsuit was filed by the American

Civil Liberties Union against the

Governor of Connecticut, the state’s

public defender services commissioners, and others. 

Such a lawsuit can produce good

results but it can take years to resolve, leaving indigent defendants in

the hands of overburdened public

defenders. Rivera v. Rowland, for

example, spent 5 years in the court

system.

Malpractice Claims in State

Court and Federal Immunity

Attorneys with excessive caseloads are under an ethical obligation

to remedy the situation. Failure to do

so may result in disciplinary action

under professional codes of conduct.

Additionally, attorneys may be held

liable for legal malpractice. A legal

malpractice suit requires proof of

four elements: (1) existence of an

attorney-client relationship, (2) the

attorney’s duty to act according to

particular standards of care, (3) failure to meet that standard, and (4)

damage to the client as a result of

that failure.31

In a recent Illinois case, Johnson v.

Halloran, a former client who was

convicted of aggravated criminal

sexual assault sued his public defender for malpractice. The public

defender sought to dismiss the plaintiff’s claims on the basis of sovereign

duty, arguing that as state employees, public defenders are immune

from malpractice claims. The Illinois

Appellate Court disagreed, finding

that a public defender’s duties and

obligations, by virtue of his or her

status as a licensed attorney, are the

same as those of any other lawyer.

That status, the court found, is 

independent of the lawyer’s state

employment.32

Although the public defender in

Johnson v. Halloran did not claim

excessive caseload as a defense, the
Withdrawal From Cases 

BUREAU OF JUSTICE ASSISTANCE 23

negligence led to a denial of the

defendants’ Sixth Amendment right

to effective counsel.34 The court

rejected this argument, finding that a

public defender does not act under

color of state law for purposes of

claims under section 1983.35 The

court stressed that the professional

relationship and obligation of a public defender are the same as those of

any private attorney and his client

and that the form of payment to

counsel does not constitute state

action. However, some states grant

immunity to public defenders by

statute.

holding, along with others before it,

should encourage public defenders

and other attorneys representing

indigent defendants to more aggressively request relief from further

assignments when they face excessive caseloads.

Public defenders enjoy limited

immunity from actions brought

under section 1983 of the Civil

Rights Act.33 In Polk County v.

Dodson, the plaintiffs, who were

criminal defendants in the underlying action, claimed that a section

1983 action would be proper when

their court-appointed counsel’s 
V. Strategies for Keeping 

Workloads Manageable

Of all the approaches public

defenders, contract defenders, and

private attorneys who handle courtappointed cases have taken to keep

their workloads reasonable, none is

a foolproof approach to this persistent problem. And, it is important to

note that a defender program cannot provide quality representation

solely by developing a numerical set

of caseload standards. Caseload

standards are only one component

of an effective indigent defense system. Public defender offices and

individual attorneys providing representation must also have fair and

adequate compensation; adequate

support staff such as investigators,

social workers, paralegals, and secretaries; a complete law library;

opportunities for continuing legal

education; sufficient funds for experts and other costs of litigation;

and specialty units for unique cases

such as death penalty and juvenile

transfer cases or for clients with

mental health problems. 

However, leaders of a local criminal defense bar, particularly chief

defenders, can pursue the following

common strategies to prevent caseloads from reaching overwhelming

levels: 

• Develop working relationships with

local criminal justice system players such as judges, prosecutors,

funders, and pretrial service programs. Hold regular meetings to

discuss common issues and work

together on common projects such

as task forces or committees.

• Maintain a constant dialogue

among judges, public defenders,

and prosecutors about the need

for balanced funding and resources. Get to know leaders of

the private bar and the criminal

defense bar. Establish ties with

local schools, churches, and

community groups that provide

pertinent services such as health

care, employment training, and

counseling. Potential supporters

of the public defender must

understand the complexities of

providing effective indigent

defense representation and the

vital need to uphold this constitutional right.

• Develop a case definition that

your office uses uniformly. Discuss the possible development of

a uniform case definition to be

used by all criminal justice system participants in the jurisdiction. In the event that caseloads

grow beyond capacity, this uniform definition can be used to

conduct an “apples to apples”

comparison with other components of the justice system.

BUREAU OF JUSTICE ASSISTANCE 25
26

KEEPING DEFENDER WORKLOADS MANAGEABLE

• Develop a user-friendly system

for recording case statistics and

producing regular reports on individual attorney workload, overall

office workload, and fluctuations

in the mix of types of cases

assigned to the office. Use these

reports for funding requests and

for internal supervision. Make use

of information systems that simplify case tracking and report production, and make sure staff are

trained to use the systems.

• Create caseload standards for 

the office, and share them with

funders, judges, and other 

players in the system. Caseload

standards can be developed in

various ways, ranging from a

case-weighting study to adoption

of NAC standards.

• Develop a way to enforce or encourage compliance with workload standards, as Indiana has

done.

• Document your office’s excessive

caseloads and inadequate staff

and resources. Begin by trying to

discuss and resolve the problem

informally with judges and funders. Make it clear that you want to

avoid having to withdraw from

cases but that you will do so if no

other solutions can be found.
BUREAU OF JUSTICE ASSISTANCE 27

VI. Notes

1. State v. Peart, 621 So. 2d 780, 791

(La. 1993).

2. Ibid.

3. State Court Model Statistical Dictionary, 1989: 19 (definition used by The

Spangenberg Group in its weightedcaseload studies).

4. Model Rule 1.1 states a “lawyer

shall provide competent representation

to a client.”

5. 681 P. 2d 1374 (Arizona 1984).

6. Monahan, Edward C., and Clark,

James, 1995, “Coping With Excessive

Workload,” Ethical Problems Facing the

Criminal Defense Lawyer: Practical

Answers to Tough Questions, Chicago,

IL: American Bar Association, 331.

7. There are no nationally recognized

caseload standards for prosecutors.

Research is under way by the American Prosecutors Research Institute to

determine whether such a set of standards can be produced. The project 

is funded through a grant from the

Bureau of Justice Assistance and

should be finalized in 2001.

8. National Advisory Commission on

Criminal Justice Standards and Goals,

Task Force on Courts, 1973, Courts.

Washington, DC: National Advisory

Commission, 186.

9. American Bar Association Standards for Criminal Justice, Providing

Defense Services, 3rd ed. Chicago, IL: 

American Bar Association: Washington, DC, 1992: 72.

10. The Spangenberg Group has conducted statewide weighted-caseload

studies for public defender programs in

Colorado, Minnesota, Tennessee, and

Wisconsin. Another weighted-caseload

study was conducted for the New York

Legal Aid Society Criminal Defense

Division in New York City. 

11. Colorado’s felony and misdemeanor caseload standards establish

thresholds based on the severity of the

charge and whether defenders are in

urban or rural offices. Colorado’s juvenile delinquency caseload standards

establish thresholds on the basis of

whether defenders are in urban or rural

offices.

12. Among the most important variables to consider in state-by-state indigent defense comparisons are the

following: whether the system is funded entirely with state funds, entirely

with county funds, or a mixture of

both; whether the system is organized

at the county, regional, or state level;

whether the state has the death penalty; whether the system has a centralized organization responsible for

statewide data collection, oversight,

and/or policymaking; the types and

percentages of cases handled by various providers in the state; the rate of

pay for court-appointed counsel in the

state; the state population; and the

way in which programs define, and
28

therefore count, cases (different programs define cases by charge, indictment, defendant, assignment, and

disposition).

13. Indiana’s 92 counties have the primary responsibility for funding the

indigent defense programs within their

jurisdictions. Each county may choose

between a county public defender, a

contract defender program, or an

assigned counsel system. The Indiana

Public Defender Commission (IPDC)

allocates state funds to offset county

indigent defense expenditures in counties that comply with IPDC’s standards

for indigent defense services in capital

and noncapital cases. Counties that

enforce these standards are reimbursed by IPDC for 40 percent of the

cost of representing indigent defendants in noncapital felony cases, 50

percent of the cost of attorneys’ fees,

and expert, investigative, and support

services in capital cases. Currently, 42

of Indiana’s 92 counties, including

Marion County (Indianapolis), the

state’s largest county, are in compliance with IPDC standards and receive

funds from the commission.

14. In some states, a commission on

indigent defense sets policy to ensure

uniformity of practice statewide, and a

state public defender implements the

policy. In other states, either a commission but no state public defender 

or no commission but a state public

defender develops and implements

policy. 

15. New Hampshire Revised Statute

Ann. § 604–B:6 (1999).

16. Washington Revised Code Ann. 

§ 10.101.030 (1999).

17. Wisconsin Statute Ann. 

§ 977.08(5)(bn) (1999).

18. 681 P. 2d 1374 (Arizona 1984).

19. Until January 1, 2001, compensation for court-appointed counsel under

Rule 24 was set at $70 per hour.

20. Two of the best state examples are

the Massachusetts Committee for Public Counsel Services’ Manual for Counsel Assigned Through the Committee

for Public Counsel Services: Policies

and Procedures (June 1995) and the

Louisiana Indigent Defense Board’s

Louisiana Standards on Indigent

Defense, Chapter 6 (1995). Performance standards can also be found for

indigent defense systems in California,

Colorado, Florida, Georgia, Indiana,

Massachusetts, Michigan, Missouri,

Nebraska, New Mexico, New York City,

New York, North Dakota, Oregon, and

Washington. 

21. The state gave the public defender

$700,000 from its award from the 

federal Drug Control and System

Improvement Formula Grant program.

22. Viglucci, Andres, The Miami Herald, October 25, 1992, p. 1B.

23. Brummer, Bennet H., 10–3 St.

Thomas Law Review/ 607, 616 

See, e.g., In re A.S., no. 92–1607FJ13

(Fla. Cir. Ct. filed October 16, 1992),

In re Certification of Conflict in Motions

To Withdraw filed by public defender of

10th Judicial Circuit, 636 So. 2d 19

KEEPING DEFENDER WORKLOADS MANAGEABLE
BUREAU OF JUSTICE ASSISTANCE

(Fla. 1994), and In re Order on Prosecution of Crim. App. by the 10th Judicial Circuit Public Defender, 561 So.

2d 1130 (Fla. 1990). 

24. While housed at the public defender office and trained and supervised by

the public defender, the county-funded

special assistant public defenders do

not receive the same fringe benefits

received by state-employed assistant

public defenders. 

25. In 1995, the estimated average fee

for a noncapital case handled by a

court-appointed attorney in Dade

County was $1,400 and for juvenile

and misdemeanor cases was $500.

The average cost/per/case handled by

special assistant public defenders was

estimated between $50 and $100.

26. Shumate, Richard, 1991–92, I Will

Not Accept Any More Cases, Barrister

11 (Winter).

27. See note 26.

28. The county appropriated an additional $470,000 in 1991 and made further steady increases to the public

defender office in the following years.

29. Touchy, Lynne, “CCLU Files Suit

Against State,” Hartford Courant,

January 6, 1995.

30. Rivera v. Rowland, Superior 

Court, Judicial District of 

Hartford-New Britain, CT (1999) (No.

CV95–545629).

31. Klein, Richard, 1988, “Legal Malpractice, Professional Discipline, and

Representation of the Indigent Defendant,” Temple Law Review 61. (4)

1191, n. 121.

32. Johnson v. Halloran, 2000 WL

21047 (Ill. App. 1 Dist.) (No.

1–98–2365).

33. 42 U.S.C. § 1983 (1982) states:

“Every person who, under color of any

statute, ordinance, regulation, custom

or usage, or any state or territory, subjects, or causes to be subjected, any

citizen of the United States or other

person within the jurisdiction thereof

to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable

to the party injured in an action at law,

suit in equity, or other proper proceeding for redress.”

34. 454 U.S. 312 (1981).

35. However, in Tower v. Glower, 467

U.S. 914 (1984), the Court clarified

there is no immunity from liability

under section 1983 for public defenders who allegedly conspire with other

state officials to deprive a former

defendant of his/her constitutional

rights. See Klein, supra note 31 at

1197.

29

Notes 
VII. For More Information

To receive more information about

indigent defense contract systems,

contact the following organizations: 

The Spangenberg Group 

1001 Water Town Street

West Newton, MA 02465

617–969–3820

Fax: 617–965–3966

E-mail: tsg@spangenberggroup.com

World Wide Web:

www.spangenberggroup.com

For additional information on BJA

grants and programs, contact:

Bureau of Justice Assistance 

810 Seventh Street NW.,

Fourth Floor

Washington, DC 20531

202–514–6278

Fax: 202–305–1367

World Wide Web: 

www.ojp.usdoj.gov/BJA

Bureau of Justice Assistance 

Clearinghouse

P.O. Box 6000

Rockville, MD 20849–6000

1–800–688–4252

World Wide Web: www.ncjrs.org

BUREAU OF JUSTICE ASSISTANCE 31

Clearinghouse staff are available

Monday through Friday, 8:30 a.m.

to 7 p.m. eastern time. Ask to be

placed on the BJA mailing list.

U.S. Department of Justice 

Response Center

1–800–421–6770 or 202–307–1480

Response Center staff are available Monday through Friday, 9 a.m.

to 5 p.m. eastern time.

To learn more about indigent

defense workloads discussed in 

this report, contact the following

organizations:

American Bar Association

Criminal Justice Section

1800 M Street NW.

Washington, DC 20036

202–331–2260

World Wide Web: www.abanet.org

National Legal Aid & Defender

Association

1625 K Street NW., Suite 800

Washington, DC 20006–1604

202–452–0620

World Wide Web: www.nlada.org
Bureau of Justice Assistance

Information

General Information

❒ Mail

P.O. Box 6000 

Rockville, MD 20849–6000

❒ Visit

2277 Research Boulevard 

Rockville, MD 20850

❒ Telephone 

1–800–688–4252 

Monday through Friday 

8:30 a.m. to 7 p.m. 

eastern time

❒ Fax

301–519–5212

❒ Fax on Demand

1–800–688–4252

Callers may contact the U.S. Department of Justice Response Center for general information or specific needs, such as assistance in submitting grant applications and information

on training. To contact the Response Center, call 1–800–421–6770 or write to 1100

Vermont Avenue NW., Washington, DC 20005.

Indepth Information

For more indepth information about BJA, its programs, and its funding opportunities,

requesters can call the BJA Clearinghouse. The BJA Clearinghouse, a component of the

National Criminal Justice Reference Service (NCJRS), shares BJA program information

with state and local agencies and community groups across the country. Information specialists are available to provide reference and referral services, publication distribution,

participation and support for conferences, and other networking and outreach activities.

The Clearinghouse can be reached by

❒ BJA Home Page

www.ojp.usdoj.gov/BJA

❒ NCJRS World Wide Web 

www.ncjrs.org

❒ E-mail

askncjrs@ncjrs.org

❒ JUSTINFO Newsletter

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